Kerala High Court
Xxxxxx vs State Of Kerala on 1 March, 2023
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Wednesday, the 1st day of March 2023 / 10th Phalguna, 1944
BAIL APPL. NO. 91 OF 2023
CRIME NO.895/2022 OF Kalady Police Station, Ernakulam
PETITIONER/ACCUSED:
XXXXX
RESPONDENT/STATE:
STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
This Bail application again coming on for orders upon perusing the
petition and this court's order dated 01/02/2023 and upon hearing the
arguments of M/S VIJAI MATHEWS, JOSEPH THEKKEKURUVANAL, Advocates for the
petitioner, Sri.S.U.NAZAR, Additional Public Prosecutor for the
respondent, the court passed the following:
ANNEXURE A1: TRUE COPY OF THE FIR IN CRIME NO.895 OF 2022 OF KALADY
POLICE STATION, ERNAKULAM DISTRICT, DATED 06/10/2022.
ANNEXURE A2: TRUE COPY OF THE FIR IN CRIME NO.896 OF 2022 OF KALADY
POLICE STATION, ERNAKULAM DISTRICT, DATED 06/10/2022
ANNEXURE A3: TRUE COPY OF THE LETTER WRITTEN BY THE DEFACTO
COMPLAINANT, DATED JULY 2020.
ANNEXURE A4: TRUE COPIES OF THE PHOTOGRAPHS PRODUCED, DATED NIL.
ANNEXURE A8: TRUE COPY OF THE EMPLOYMENT CERTIFICATE, DATED
25-01-2023.
ALEXANDER THOMAS & C.S.SUDHA, JJ.
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B.A.No.75 of 2023 and B.A.No.91 of 2023
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Dated this the 1st day of March, 2023
ORDER
C.S.SUDHA, J.
Admit both the applications.
2. Sri.S.U.Nazar, the learned Additional Public Prosecutor, takes notice for the respondent. Issue notice to the victim through special messenger in these bail applications returnable within three days. Let an additional notice also be served on the victim in these bail applications through the investigating Officer concerned who shall report the service of notice in that regard through the learned Public Prosecutor.
3. The aforesaid two bail applications under Section 438 Cr.P.C. have been filed by the sole accused in Crime Nos.895/2022 and 896/2022 of Kalady Police Station alleging commission of the offences punishable under Sections 354A(1)(i) IPC, Sections 8, 10 of the PoCSO Act and Section 376(2)(n) IPC respectively. When the bail applications came up before a learned single Judge, the learned Public Prosecutor relying on the dictum in Shafi S.M. v. State of Kerala, 2020(4) KHC 510 challenged the B.A.No.75 of 2023 and B.A.No.91 of 2023 2 maintainability of the applications as the applicant was abroad at the time of filing the applications and he continues to be so. On the other hand, the petitioner/accused relied on the dictum in Vijay Babu v. State of Kerala, 2022(4) KLT 24, in which a contrary view has been taken, that is, a bail application is maintainable even if the petitioner/accused is not in India at the time of filing the same. The learned Single Judge took note of two reference orders passed in B.A.No.4421/2022 and B.A.No.4983/2022 dated 27/06/2022 and 28/06/2022 respectively on the very same issue. Hence the Registry was directed to place the present bail applications before the Hon'ble Chief Justice for appropriate orders in the light of the aforesaid reference orders. Thus, the applications are before us.
4. The reference is pending consideration before us. It is submitted by the learned counsel for the petitioner that the engagement of the petitioner was on 25/12/2021 and that his marriage is to be solemnised on 17/03/2023. The petitioner intends to come down to India for his marriage. However, he apprehends that the moment he lands in India, he would be arrested and hence requests for an urgent interim order before we answer the reference. In the light of the urgency cited, we proceed to consider the request for an interim order without going into the question B.A.No.75 of 2023 and B.A.No.91 of 2023 3 whether the present applications are maintainable or not.
5. Heard Sri.Vijay Mathews, the learned counsel for the petitioner/accused and Sri.S.U.Nazar, the Additional Public Prosecutor for the respondent.
6. In Crime No.895/2022 of Kalady Police Station (Annexure A1), the allegation is that in October 2012, the petitioner/accused sexually assaulted the informant by kissing as well as touching her private parts by threatening her that he is in possession of her nude videos. Thereafter in 2013, he hugged/embraced her and then kissed her. The first assault is stated to have taken place at the residence of the informant's maternal aunt, when she was 14 years old and the second incident is at the road situated near her residence.
7. In Crime No.896/2022 of Kalady Police Station (Annexure A2), the allegation is that the petitioner/accused during the period between 2019 to 2020, forced the informant to perform oral sex at different places by threatening her that if she did not accede to his demands, he would make public her nude videos in his possession. On another occasion, the petitioner/accused is stated to have attempted to have sexual intercourse with the informant, but the attempt failed as she resisted the said attempt. B.A.No.75 of 2023 and B.A.No.91 of 2023 4
8. The petitioner/accused denies all the aforesaid allegations. The informant is his paternal aunt's daughter (first-cousin). However, he never had any contact with the informant because the families were at loggerheads as the marriage of the petitioner's parents is an inter-caste one. He never had any contact with the informant during her minority. In the year 2016, they came into contact through social media, fell in love and decided to tie the knot. However, their marriage did not materialise due to the stiff resistance and objection to the alliance by the informant's parents, the main reason for which was the inter-caste marriage of the petitioner's parents and because the petitioner and family are not financially sound. The parents of the informant, against her wishes, married her off to another person. Thereafter the petitioner never had any contact with her. The petitioner is working in Gulf and his marriage has already been fixed. He was about to come to India for his marriage. However, the informant after coming to know that his marriage has been fixed, with the intention of troubling and unnecessarily harass him and to dissuade him from going ahead with his marriage, has filed a false complaint against him, contends the petitioner.
9. The first crime is alleged to have taken place about 10 years back and the second one about three years back. In the FIS, the informant B.A.No.75 of 2023 and B.A.No.91 of 2023 5 has not given any reason for the delay in reporting the matter. There is certainly delay in reporting the matter to the police. The informant admits that she has not revealed the incidents to anyone. According to her, of late, the petitioner with sexual intentions, is interfering in her life and trying to destroy her life by reminding her of the old nude videos in his possession.
10. The case of the petitioner that he and the informant were in a relationship is probabilised by Annexure A3 letter, alleged to have been written by the informant and Annexure A4 series photographs. The question whether the petitioner had in fact sexually assaulted or committed rape on the informant, is not a matter to be decided at this stage and the same can be decided only after trial. As per Annexure A8, the petitioner appears to be working abroad from 2016 onwards. His last visit home appears to be on 20/12/2021 and he left India on 04/01/2022. Annexures A1 and A2 crimes are seen registered on 06/10/2022, which is apparently much after he left the country. As the petitioner's marriage is fixed to be solemnised on 17/03/2023 ; as there is possibility of his arrest on arrival and as this is not a case where custodial interrogation is necessary, we are of the opinion that an interim order for the grant of anticipatory bail can be granted to the petitioner.
B.A.No.75 of 2023 and B.A.No.91 of 2023 6 In the result, the plea for an interim order for the grant of anticipatory bail is allowed subject to the following conditions:
(i) The petitioner on his arrival in India, shall appear before the investigating Officer on the very next day of his arrival in India and in the event of his arrest in the aforesaid crimes, shall be released on bail on his executing a bond for a sum of `50,000/- for each crime separately (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the investigating Officer. It is made clear that two separate bonds shall be executed in the two crimes.
(ii) The petitioner shall co-operate with the investigation and appear before the investigating Officer as and when directed by him.
(iii) The petitioner shall not intimidate or influence the witnesses in any manner or interfere with the course of investigation. He shall not approach or try to contact the informant or interfere in her affairs in any manner.
(iv) The petitioner shall not commit any offence(s) while on bail.
B.A.No.75 of 2023 and B.A.No.91 of 2023 7
(v) The petitioner shall not leave the country without the permission of this Court. He shall surrender his passport before this Court.
Needless to say, in the event of violation of any of the above condition(s) of bail, the investigating Officer would be at liberty to move this Court for cancellation of the interim bail.
This order will be subject to the final result of the bail applications and also the final outcome in the reference orders.
List the above cases along with connected matters on 14/03/2023.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
C.S.SUDHA, JUDGE
ami/
01-03-2023 /True Copy/ Assistant Registrar